NARAL Pro-Choice Missouri : Issues : Fact Sheets

If H.B. 1625 is passed, Missouri will join Mississippi as the only state in the nation to expressly extend so-called “conscience” protection to pharmacies as opposed to individual pharmacists.[1] The bill states no grounds for allowing any given pharmacy to opt out of filling prescriptions—it simply confers the statutory right to do so. If the bill were to confer such a wholesale opt-out on pharmacies (corporations) rather than on pharmacists (individuals), it would run afoul of the law, for all of the following reasons:

1. Pharmacies are corporate forms that have no ostensible “conscience” rights to refuse to fill a class of prescriptions for women, and if they did, the law could not enforce them.

The principle is well-established that, while corporations may be “natural persons” for purposes of capacity to sue and be sued, they are not “persons” with consciences. The fact that an owner of a nonsectarian pharmacy may be privately religious does not render his pharmacy “religious,” and therefore, the law cannot protect the pharmacy’s alleged religious sensibilities. See EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610 (9^th Cir.), cert. denied, 489 U.S. 1077 (1989) (religious beliefs of for-profit company’s owners cannot be conflated with those of an entire enterprise; nonsectarian private companies do not have “religious” views entitled to legal protection). The courts have held, time and time again, that a person or corporation acting in a for-profit capacity as a marketplace actor must accept the general marketplace rules by which a secular world operates—including nondiscrimination in the provision of goods and services. As the United States Supreme Court held in United States v. Lee, 455 U.S. 252, 261 (1982), “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith, are not to be superimposed on the statutory schemes which are binding on others in that activity.”[2]

The Missouri Human Rights Act forbids discrimination in places of public accommodation based on sex. See Mo. Rev. Stat. Sect. 213.065. “Places of public accommodation” are defined as “all places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public. . .” Mo. Rev. Stat. Sect. 213.010.

In allowing pharmacies to blanketly refuse to fill prescriptions—goods sold to the public--that are prescribed only to women, for their “peace, comfort, health, and welfare,” the bill arguably violates the public accommodations prong of the Missouri Human Rights Act. In addition, since birth control pills move in the stream of interstate commerce, it is possible that the public accommodations provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sect. 2000e et seq. would also be violated—in which case, the Supremacy Clause of the federal Constitution would negate Missouri’s attempt to legislate contrary to federal law.

3. H.B. 1625 Is Based on Ignorance of Accepted Medical Knowledge about what Constitutes an Abortifacient.

H.B. 1625 falsely equates RU-486, the medical abortion pill, with emergency contraception (EC), also known as Plan B—despite the fact that the overwhelming medical consensus holds that EC is not an abortifacient. EC is simply a larger dosage of the hormones found in standard birth-control bills. Far from being an abortifacient, EC will not work if the woman already is pregnant. This is why it is classified by the FDA as birth control and not as an abortifacient. RU-486, unlike Plan B, is available at pharmacies in Europe, but in the United States, is not available anywhere but in a physician’s office.

In addition, section 338.575 purports to allow pharmacies to refuse to “perform, assist, recommend, refer to, or participate in any act or service in connection with” “any” drug or device that is mischaracterized here as an abortifacient, as Plan B is mischaracterized. This hazards the possibility that devices such as contraceptive rings and IUDs could be mischaracterized, as well, despite the obvious error, until a court corrects the obvious error of understanding on the part of H.B. 1615’s drafters.

4. H.B. 1625 Is Poorly Drafted and Risks Litigation Under Consumer Protection Laws.

The Federal Trade Commission Act, 15 U.S.C.A. Sect. 45 (a) (1), allows suit about false and deceptive advertisements or other unfair or injurious practices affecting consumers where goods move in interstate commerce. In addition, the Missouri Merchandising Practices Act, Mo. Rev. Stat. Sect. 407.020, allows the attorney general to sue where there is “deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.” Plan B, and other drugs or devices, are articles in trade or interstate commerce. The bill misrepresents, deceives and makes false promises that Plan B is an abortifacient in connection with allowing refused of its sale. In addition, it conceals, suppresses and omits the material truth that Plan B (and potentially other drugs and devices) is not an abortifacient, in the context of allowing its sales to be refused.

H.B. 1625 would impose yet one more stumbling block to a woman’s ability to prevent an unwanted pregnancy. Preventing unintended pregnancies will reduce abortions. All obstacles to birth control can achieve are more pregnancies, with the consequence of more abortions.

[1] Arkansas, Colorado, Maine, and Tennessee have broadly worded health care refusal statutes that might arguably extend to pharmacies rather than being limited to pharmacists.

[2] Accord Braunfield v. Brown, 366 U.S. 599, 606 (1961) (it is not a constitutional burden on landlord’s free-exercise rights if his choice to adhere to his religious beliefs instead of antidiscrimination law costs him money); Smith v. Fair Empl. & Hous. Comm’n, 874 P.2d 909, 925-26 (Cal. 1996) (“the landlord in this case does not claim that her religious beliefs require her to rent apartments; the religious injunction is simply that she not rent to unmarried couples. No religious exercise is burdened if she follows the alternative course of placing her capital in another investment”); Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 283 (“[The religiously motivated discriminatory landlord] has made no showing of a religious belief which requires that he engage in the property-rental business. Additionally, the economic burden, or “Hobson’s choice,’ of which he complains, is caused by his choice to enter into commercial activity that is regulated by anti-discrimination laws. . . . The [antidiscrimination law he objects to obeying] regulate[s] unlawful practices in the rental of real property and provides that those who engage in those activities shall not discriminate. . . . Voluntary commercial activity does not receive the same status accorded to directly religious activity.”)